Opportunity To Lead Pre-Summoning Evidence Must Be Given Even In Criminal Cases Appearing 'Civil': Delhi High Court

The Delhi High Court has held that even where a Magistrate declines to order registration of an FIR under Section 156(3) CrPC, the complainant must ordinarily be given an opportunity to lead pre-summoning evidence before the complaint is dismissed as being “purely civil” in nature.

Justice Manoj Jain observed that the “dividing line” between a civil breach of contract and criminality is often “a thin one,” and therefore the complainant should be allowed to establish the alleged criminal offence through evidence.

The Court was dealing with a petition filed by M/s Progressive Finlease Ltd challenging orders of the trial court and revisional court refusing to direct registration of FIR against certain accused persons for offences under Sections 406, 420, 421, 422 and 120-B IPC.

The trial court had dismissed the complaint after observing that the allegations, at best, disclosed a breach of agreement which was civil in nature and had merely been given a criminal overtone. The revisional court had also affirmed the view that no criminal offence was made out.

However, the High Court found the observations to be premature.

“Fact, however, remains that observation formed in this regard by the learned Trial Court as well as by learned Revisional Court are, evidently, bit premature as, in any case, an opportunity should have been granted to the complainant to bring on record its evidence, in order to demonstrate criminality, if any,” the Court observed.

The Court further emphasised that even if the application under Section 156(3) CrPC did not merit acceptance, the Magistrate ought to have permitted the complainant to lead pre-summoning evidence.

“Therefore, even if, the application under Section 156(3) Cr.P.C. did not find favour, learned Trial Court should have given an opportunity to the complainant to prove its case by leading pre-summoning evidence,” the Court said.

As such, the Court disposed of the petition by directing the trial court to permit the complainant to lead pre-summoning evidence and thereafter take an appropriate decision in accordance with law.

Appearance: Mr. Shailendra Bhatnagar, Mr. Pradeep Kumar and Mr. Bal Krishan Yadav, Advocates for Petitioner; Mr. Sunil Kumar Gautam, APP for State/R-1 with SI Praveen, PS EOW Mr. Vikas Gupta and Mr. Sohil Sharma, Advocates for R-2 & R-3

Case Title: M/S Progressive Finlease Ltd v. State

Case no.: CRL.M.C. 7050/2023

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